Addendum To Any Relief For Aggravated Felons? A Brief Note On A Valuable Lesson: A Close And In-depth Examination Could Lead To Relief Even For Aggravated Felons

This is an addendum and corrigenda to my article, "Any Relief For Aggravated Felons? A Brief Note On A Valuable Lesson: A Close And In-depth Examination Could Lead To Relief Even For Aggravated Felons," that was published in the Immigration Daily of ILW.COM, on September 20, 2007. My immediate purpose is to remove a couple of errors that might tend to mislead some readers, particularly those who may fail to read the primary source material-the INA, and to add some explanatory notes. My errors were caused by over-arching or hyperbolic first two sentences in the original article. They were intended to be more rhetorical than accurate, just as an introduction to the intended central thrust of the article, which was to convey a message that a studious lawyer could possibly find a way to wriggle a client, an aggravated felon, out of what might otherwise seem a hopeless situation. It was indeed not my intent to write a comprehensive thesis or an exegesis to list and explain how many and which specific reliefs are available to aggravated felons.

Yet, I have always believed that one should be ready to correct any mistake, whether misleading or not, whether intentional or otherwise. So, here it is. My original first sentence that an aggravated felon is not eligible for any relief under the existing provisions of the Immigration and Nationality Act, is not correct. Rather, I should have said that it is very likely that most aggravated felons would find themselves in an unenviable situation of not being able to find any relief provision in the INA. Such a statement would have been fairly accurate because it would have taken care of those aliens who, despite a conviction for committing an aggravated felony, may still be eligible for admission or adjustment of status under any of the relief provisions, such as INA § 212(a)(2)(A)(ii)(II), which relates to an alien who, although convicted, could not have been sentenced to a maximum imprisonment of more than one year, and was not actually sentenced to an imprisonment in excess of six months; or those who are not controlled substance traffickers under INA § 212(a)(2)(C). This specific correction also takes care of the error in the second sentence that an aggravated alien, if he is trying to enter or reenter the United States, is considered ineligible for admission and an immigrant visa.

The fact of the matter is that an aggravated felon, if he is trying to enter or reenter the United States, is not per se ineligible for admission or an immigrant visa, unless the alien is a controlled substance trafficker who is inadmissible under § 212(a)(2)(C). More specifically, there is no inadmissibility provision in section 212(a) for aggravated felons as such. This is in contrast to § 237(a)(2), which delineates criminal grounds of deportation, one of which specifically states that any alien who is convicted of an aggravated felony any time after admission is deportable.

Indeed, the central purpose of my article was to convey a message that a studious lawyer who is willing to defend a client zealously, could possibly find an avenue of relief for the client who may have committed an aggravated felony. He or she should not rest because a relief provision is not quite apparent or clear on the face of the statute. I tried to show it by giving a specific example of an alien lawful permanent resident who was convicted of an attempt to sell a controlled substance (LSD) and was sentenced to a probation of five years. Obviously, he did not fall under any of the exceptions in either § 212(a) or the relief provision in § 240A, [1] that could save him. Probably that was the reason why some attorneys had already advised him that they could not do anything to help him. Yet, a little digging into the facts and the regulatory changes that came out as a result of the U.S. Supreme Court's decision in INS v. St. Cyr, 533 U. S. 289, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001), would also have unearthed the binding BIA precedent noted below, which in turn would have made them more hopeful rather than being entirely hopeless. Indeed, such efforts really enabled me to raise a clearly viable defense.

I also did not want to belabor the point by citing many BIA and Federal Court decisions that I cited in my brief to show that the alien was indeed eligible for relief under 8 CFR § 1212.3(h). As many skillful lawyers know, development of a good legal brief requires in-depth research, and also takes a comprehensive approach to an issue, so as to cover as many bases as the writer may be able to find in support of the claim for relief. For example, to show that § 1212.3(h) was applicable to him, I had to establish that he was eligible for § 212(c) as amended by section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, which is what § 1212.3(h) expressly dictates.

However, a bare reading of AEDPA § 440(d) does not make the availability of relief immediately apparent, for it essentially says that § 212(c) "shall not apply to an alien who is deportable by reason of having committed any criminal offense covered in section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are, without regard to the date of their commission, otherwise covered by section 241(a)(2)(A)(i)." All these referenced sections are the former deportability provisions in the INA that existed prior to the IIRIRA's reorganization of § 241 into § 237. When you read, in turn, either the former § 241 or the current § 237, you will find that they all relate to criminal offenses which would trigger a charge of deportability. This is where many would easily jump to a conclusion that all such criminal offenses would bar § 212(c) relief, but this is where a probing attorney, instead of jumping to that fateful conclusion, would analyze the language of § 440(d) with a magnifying glass and a probing mind, utilizing the basic rules of statutory construction, and advocate a clearly legitimate and credible argument that when Congress inserted only the deportability provisions as a bar to § 212(c) relief, USCIS or EOIR cannot insert or read in the statute the corresponding inadmissibility provisions of § 212(a). For, that would be a legislative act that an executive agency cannot perform.

Remember, this entire exercise throws us back to the pre-IIRIRA 1996 period when there was a clear division between deportation provisions and inadmissibility provisions, between deportation proceedings and inadmissibility proceedings. Indeed, reported judicial and administrative cases are legion that declare that immigration laws have long made a distinction between those aliens who have come to the shores seeking admission and those who are within the United States after an entry, irrespective of its legality. Further, deportation proceedings afford greater procedural and substantive rights to an alien than do exclusion proceedings. This indisputable distinction was indeed the key to the claim for § 212(c) relief.

Thus, although it is much tougher to establish § 212(c) eligibility after the AEDPA amendment that became effective on April 24, 1996, and therefore to establish the school teacher's eligibility was certainly not an easy task, I was able to find a BIA decision that became a handy weapon in his defense. [2] In Fuentes-Campos, the Government specifically argued that § 212(c) relief was not available to anyone who has been convicted of an aggravated felony, regardless of the charge and the nature of the proceedings. However, employing the traditional principles of statutory construction, the Board of Immigration Appeals squarely rejected that argument and ruled that an applicant for admission in exclusion proceedings who is inadmissible on the basis of a controlled substance offense is statutorily eligible for a waiver of inadmissibility under section 212(c), as amended by AEDPA § 440(d).

The logical cornerstone in the BIA ruling was the distinction between "Exclusion" and "Deportation," because the statutory language introduced by AEDPA § 440(d) clearly applied to an alien who "is deportable" and is charged with deportability for committing only the "deportable" offenses covered by certain specific grounds of deportability under § 241(a)(2). In other words, it did not apply to the offenses covered by § 212(a)(2) ground of inadmissibility. Indeed, the BIA also addressed the various Service concerns and arguments, that the clause "is deportable" was simply intended to denote someone subject to removal from the country, or that the BIA ruling would reduce the AEDPA amendment to a legislative absurdity, one that would violate the constitutional mandate of equal protection. However, the Board resoundingly rejected each of those arguments with a lengthy exposition.

There was yet another hurdle, whether the 1997 Fuentes-Campos decision was still good law, which required me to trace the history, status and standing of that decision. Although it was referenced in as many as 54 subsequent decisions as of January 2007?both administrative and judicial, it was neither overruled nor superseded by any subsequent decision or action.[3]

I thought that an addendum like this, besides the corrigenda, would not only correct the two unintended rhetorical mistakes in my original article, but in that process would also enhance its central thrust. I only wish that the reader would be kind enough to read both-the original article and this addendum-together.

1 I should also add that an alien who is not a lawful permanent resident could possibly claim a relief now known as cancellation of removal under INA § 240A(b), formerly known as suspension of deportation.

3 One can find the status and standing of any administrative precedent in one of my immigration books, Patel's Citations of Administrative Decisions under Immigration and Nationality Laws, a one-volume publication published by Legal Research Bureau, updated every year.

About The Author

Pravinchandra J. Patel, Esq. is a practicing attorney in New York and can be reached at 1270 Broadway, Suite 411, New York, New York 10001; (212) 279-3230; email: pjpatel@immigrationbypatel.com. For nearly three decades, he has authored/compiled/edited and regularly updated source materials for fellow immigration attorneys through his immigration books, see here. The opinion and information expressed in this article is not intended to provide guidance in any specific case or to any individual. Rather, it is intended for general information.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.